Federal court strikes down parts of union law

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A federal judge in Madison on Friday ruled that portions of Act 10 - the lightning-rod measure from Gov. Scott Walker that removed most collective bargaining for most public employees - are unconstitutional.

Critics of the law welcomed the decision as a major victory, but backers of the legislation seemed unconcerned since the ruling preserved a main limit on bargaining, and suggested broader restrictions would pass muster if applied to all state workers.

Seven major public employee unions had challenged the fact that Act 10 dramatically narrowed what could be bargained by general public employee unions, and required those unions to recertify every year by an absolute majority of membership while denying the same unions voluntary payroll deductions for dues.

The court sided with state officials in upholding limitations on what can be bargained, but found the two other provisions violated the union members' equal protection and First Amendment rights, considering that the same rules did not apply to unions for public safety workers such as police and firefighters.

"So long as the State of Wisconsin continues to afford ordinary certification and dues deductions to mandatory public safety unions with sweeping bargaining rights, there is no rational basis to deny those rights to voluntary general unions with severely restricted bargaining rights," wrote U.S. District Judge William M. Conley.

Conley, formerly a partner at Foley & Lardner in Madison, was appointed to the federal bench by President Barack Obama in 2009 and confirmed by the Senate in 2010.

Cullen Werwie, a spokesman for Walker, said the state would likely appeal the decision.

"Today, Judge Conley affirmed the constitutionality of nearly everything in Act 10," he said in a statement. "We are confident that the 7th Circuit Court of Appeals will continue to uphold the constitutionality of the law."

Mary Bell, president of the Wisconsin Education Association Council, called the ruling "a good first step." She said it showed the purpose of the law was "punishing political enemies."

Peg Lautenschlager, the attorney for the Wisconsin State Employees Union, called the decision a "great victory" for her client.

"Obviously, we're thrilled," Lautenschlager said. "The collective bargaining part is a disappointment. But the notion that a federal judge has said to Scott Walker that he's gone too far on this law is fabulous."

Basis for lawsuit

The plaintiff unions challenged three specific provisions of Act 10:

Restricting the subject of "general employee" unions' collective bargaining to base wages only, and prohibiting fair-share agreements by which nonunion members pay the unions for the benefits won through the unions' efforts.

Requiring annual re-certification of general employee unions by an absolute majority of all employees in the bargaining unit, as opposed to a majority of those voting.

Prohibiting the automatic deduction of dues and fair-share payments from payroll checks of general employees.

The unions argued all three provisions violated the equal protection clause, and that the ban on automatic dues deduction hampered the workers' First Amendment rights.

But Conley found the unions failed to show the elimination of broader collective bargaining for their members violates equal protection. To do so, they would have to show there was no rational basis for the state to grant broader collective bargaining powers to the public safety unions. Conley said the state's claimed reason - to avoid strikes by those workers - met that test.

The fact that those same employees' unions supported Walker may make the rules look like political favoritism, but Conley said that's not enough to make the court use a stricter standard of review.

However, Conley found that the two other changes - annual recertification and the ban on automatic dues deduction - violated the First Amendment rights of the affected workers.

"The court would be remiss not to at least note the likely burden the annual recertification process imposes on the members' speech and association rights," he wrote.

The state's justification for allowing greater bargaining by public safety workers - avoidance of strikes - does not stand up as a rational basis for requiring other public worker unions to annually recertify by absolute majority, and denying them automatic dues deductions, the court said.

Automatic dues deductions for general employee unions should start again at the end of May - barring appeals or higher court rulings that would block or postpone Conley's order.

But Jocelyn Webster, a spokeswoman for the state Department of Administration, said she could not say when the state might resume deducting union dues from paychecks until lawyers complete a review of the ruling.

About 15 of the state's collective bargaining units failed to recertify under the new union law, according to the Wisconsin Employment Relations Commission. The same thing happened to an unknown number of local unions.

Bell and Lautenschlager said they believe the judge's ruling reconstituted all those unions and they could resume bargaining over wages. Assistant Attorney General Steve Means said that wasn't entirely clear and the Department of Justice would have to review the issue carefully.

Attorney General J.B. Van Hollen said the ruling may give "unions more power over their members," but won't benefit public employees.

"This case started as a broad attack on all union-related aspects of Act 10," he said. "Plaintiffs have failed on all but two issues. If the ruling stands, unions representing non-'public safety employees' will no longer have to demonstrate member support through annual recertification and will have greater ability to take money out of employees' paychecks."

The court's order came just hours after state election officials ordered a recall election for Walker. That recall effort was sparked by the governor's bill on collective bargaining.

"Wisconsin citizens have long known Gov. Walker's attack on workers was not honest and today's court ruling shows his attack was not legal," said a statement from former Dane County Executive Kathleen Falk, a Democrat running against Walker.

"Gov. Walker tore Wisconsin apart and his way has failed us. As governor, I will restore transparency, accountability and honesty to the governor's office and bring Wisconsin together."

Both sides see victory

A group that supports "right to work" laws called Conley's ruling a blueprint for limiting powers of all public unions.

"The real solution to the 'equal protection' claims raised by the plaintiffs in this lawsuit is to apply Act 10 to all government employee unions and stop - in the judge's words - 'selectively subsidizing public unions,' " said Mark Mix, president of the National Right to Work Legal Defense Foundation, a group that has received at least $687,500 from the Bradley Foundation in the past eight years. Michael Grebe, president of the Bradley Foundation, also chairs Walker's campaign committee.

Madison attorney Tamara Packard has an Act 10 case pending in Dane County Circuit Court. The case was brought by Madison Teachers Inc. and WEAC.

"I think the rationale, especially among the First Amendment grounds, is extremely sound," she said of Conley's ruling.

"We had been following this case closely, had read the briefs and thought the plaintiffs arguments were good ones especially when it came to the speech and the associational rights argument."

Could the Legislature simply apply the new rules to cops and firefighters to make the case go away?

"I suppose that is a possibility to the extent that it would defuse the equal protection arguments," she said. "But that doesn't solve the First Amendment problems with the law. Perhaps it would get rid of the equal protection basis of Judge Conley's ruling.

"I don't think they have the political power to be able to do that anymore with the Senate split as it is," she added, referring to the 16-16 divide in the state Senate. "They're not going to get anything accomplished, nothing like this anyway."

Paul Bucher, former Waukesha district attorney and one-time candidate for attorney general, called Conley's order one of the most political rulings he's seen.

"I think the 7th Circuit is definitely going to look at this case and say, 'Why are you deciding this case based on extraneous politics and political support of the governor?' "

Conley's order also denied motions by state workers and a law enforcement union to join the case, and denied others attempts to file friend of the court briefs in the case.

Bill Glauber, Jason Stein and Ben Poston of the Journal Sentinel staff contributed to this report.

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About Patrick Marley

Patrick Marley covers state government and state politics. He is the author, with Journal Sentinel reporter Jason Stein, of "More Than They Bargained For: Scott Walker, Unions and the Fight for Wisconsin.”